ACA Repeal Faces Uncertain Future in Washington

August recess leaves little time to act before the fall

WASHINGTON -- Now that the House has departed for its August recess and the Senate is winding down, uncertainty prevails regarding what -- if any -- the next steps on the healthcare front will be on Capitol Hill.

Following the early Friday morning defeat of the Republican Senate leadership's "skinny repeal" of the Affordable Care Act (ACA), several members of Congress are trying to step into the breach. One effort being spearheaded by senators Lindsey Graham (R-S.C.) and Bill Cassidy, MD (R-La.), would take all federal funding for ACA subsidies and give it to states in the form of a block grant; states could either continue with the ACA marketplaces or come up with their own programs for helping low-income people afford health insurance. The proposal also would repeal the ACA's tax on medical devices and institute a block-grant funding program for Medicaid, similar to that included in the House-passed bill to repeal the ACA.

The Graham-Cassidy bill, which was also endorsed by Sen. Dean Heller (R-Nev.) has come under criticism for the funding cuts it would include. "By 2025, [the bill] represents a 34% cut to the ACA BEFORE even counting the next takeaway," tweeted Andy Slavitt, former acting administrator of the Centers for Medicare & Medicaid Services during the Obama administration, on Monday.

In addition, the bill would end the matching funds that the federal government is giving states that expand Medicaid, as well as the ACA's premium tax credits and its cost-sharing reduction (CSR) subsidies to insurers -- money that helps low-income enrollees on the insurance exchanges pay their out-of-pocket costs -- all in 2020, he noted. "NET-NET: Total of trillions cut over 2 decades to low income people. Millions will ... lose coverage right away."

However, with the House gone and the Senate about to leave, momentum for such a measure is not currently materializing, although the idea is certainly generating discussion, said Chris Sloan, senior manager at Avalere, a healthcare consulting firm here, in a phone interview. "The Senate [leadership] has already made comments about moving on ... it doesn't appear right now that we're looking at some sort of imminent take-up of the Cassidy-Graham amendment."

Efforts in the House

In the meantime, over in the House, a group of about 40 representatives -- including Democrats and some moderate Republicans -- have come out with a plan to stabilize the insurance markets and keep paying the CSR subsidies to insurers. The proposal by the Problem Solvers Caucus would also repeal the medical device tax, decrease the number of businesses affected by the ACA's employer mandate, and make it easier for states to innovate and to allow sale of health insurance policies across state lines.

"Although the House is out of session, they could in theory come back to vote on this, but this will become much more urgent if the administration decides not to fund the CSRs. Representatives and senators will then be looking at their states and the higher-than-originally-projected premium increases, as well as the insurers that are pulling out, and they will be under pressure to do something about it," said Sloan. That would make passage of such a proposal more likely.

CSR Payments in Question

Currently, the CSR payments are being made by the Trump administration. However, back in 2014, Republican House members sued over the payments -- which were implemented as part of the ACA -- arguing that they were being made illegally because Congress never actually authorized the money for them. A federal judge sided with the House members in the case, now known as House v. Price. But the Trump administration has twice asked for and received delays in implementing the decision as it decided whether to continue the payments. The second delay order runs out August 20th, leaving the White House only a short time to decide what it will now do.

"It seems like the choice is to keep delaying or not fund [the CSRs], and they're leaning toward not funding them," said Sloan.

The administration has an extra bit of leverage with Congress on the CSRs -- they also subsidize the health insurance that, under the ACA, members of Congress and their staff personnel are required to buy on the exchanges.

All of this uncertainty about the CSR payments and what Congress may do is making observers and exchange enrollees anxious, said Dan Derksen, MD, director of the University of Arizona Center for Rural Health in Tucson. "I think mischief can be done to undermine coverage and funding at the executive branch level, and those [thoughts] are still anxiety-provoking for those focused on how this affects coverage, access to care, and how people pay for their coverage ... It creates more anxiety or uncertainty in the marketplace, which is already fairly volatile."

In Arizona, Blue Cross Blue Shield is the only insurer offering plans in 13 of the state's 15 counties, and the other two counties, which are among the state's largest, also only have one insurer, Ambetter/Centene, he said. "It's making those who have pledged to stay in a little nervous ... there has been a real fluctuation in the marketplace; a little over 2 years ago, there were seven different insurers offering [a total of] 70 plans in every county, and we had the second-lowest silver premiums in the country."

"When there is only one insurer [per market], they can charge what the market will bear, and prices go up," Derksen continued. On top of that issue, the next open enrollment will be only half as long -- 45 days -- as it was previously due to regulations issued by the Trump administration. "People have to be on top of things."

Help for Insurers?

Despite the problems with the marketplaces, "I don't think there's going to be a huge enthusiasm for bailing out the insurance companies," he said, noting that Congress already declined to appropriate the "risk mitigation" funds authorized by the ACA to help insurers pay for higher-cost patients and make it easier for them to stay in the marketplaces. "When the rhetoric says, 'Well, [the ACA is] failing,' there's folks helping it fail."

Healthcare consultant Kip Piper doesn't think "bailing out" the insurers is a fair description for some of the proposed solutions, such as funding the CSRs. "The cost-sharing subsidies are no more a bailout to insurers than are homeowners' insurance premiums a bailout of the construction industry," he wrote in an email. "The funds go directly to reduce deducible, copayments, and coinsurance for exchange enrollees between 100% and 250% of federal poverty. Stopping them abruptly would suddenly increase out-of-pocket costs and immediately result in some loss of enrollment, some enrollees stopping their premium payments, more insurers dropping out for 2018, and fewer individuals signing up for 2018."

Assuming the ACA's exchanges are here to stay, at least for now, "Congress will need to fix the problem the Democrats created in 2010 when they did not appropriate the money -- and the [problem the] Obama administration created from 2014 to today by spending the money unlawfully," he wrote. "That will be tough for Republicans to swallow, and Democrats don't yet seem willing to admit that what the prior administration did was not legal, notwithstanding good intentions."

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